DNA case analysis: The mystery of the missing purpose
24 May 2011
We reported last week the Supreme Court ruling in R (on the application of GC) (FC) (Appellants) v The Commissioner of Police of the Metropolis (Respondent) in which the majority found that they could interpret the DNA retention provision in the Police and Criminal Evidence Act (PACE) in such a way that it would be compatible with article 8 of the ECHR.
Not only that; the Court concluded that such a reading could still promote the statutory purposes: ” Those purposes can be achieved by a proportionate scheme.”
Well here’s a mystery. DNA fingerprinting has been with us so long now we seem to have forgotten its significance. When the connection was made in 1984 between the taking of DNA samples and the detection of crime the PACE quickly followed. If the policy and objects of PACE are not to provide the terms of reference for the taking, storage and use of such evidence in criminal cases, what is the Act for? And Section 64(1A), in particular, was introduced, in Lord Rodger’s words:
to ensure that, in future, instead of being destroyed, samples taken from suspects would be retained indefinitely and so remain available to the police on the national DNA database. This would protect the public by facilitating the detection and prosecution of the perpetrators of crimes 
A chronicle of a disappearance
In the space of just over a decade, a fundamental feature of the legislative scheme underlying PACE seems to have been stamped out of existence. How has this happened?
- Until 2001, the police were required by law to destroy fingerprint or DNA samples taken from suspects during the course of an investigation.
- In 1997 an elderly woman was attacked and raped by an intruder in her flat.
- In 1998 a saliva sample taken in an unrelated burglary matched the DNA profile obtained from the swabs taken from the victim
- The defendant was acquitted because the sample had been unlawfully retained
- In 2001, following the public outcry, the government legislated to allow the police to retain all fingerprints and DNA samples taken from suspects during the course of an investigation to be retained and used for the purposes of prevention and detection of crime and the prosecution of offences.
- In 2004 the House of Lords turned down an appeal against the effect of this provision, observing that the benefits of the larger database that it had brought about were manifest, and that the retention of DNA samples did not constitute an interference with the right to privacy under Article 8, or if it did, that the interference was justified by the public interest in the detection and control of crime.
- In 2008 the Strasbourg Court ruled that a broad policy of retention could never be justified by public interest considerations within the meaning of Article 8(2)
- Legislation was drawn up in response to this ruling but not brought in following the change of government in 2010
- In 2011 the Supreme Court declares that the provision could be so interpreted that the police had acted unlawfully in following a blanket policy to retain all samples
So where have all the statutory purposes gone?
Into the recycle bin, every one.
After a dozen years under the interpretative obligation of the Human Rights Act (which requires the courts to read down legislation in a way that is compatible with Convention rights) the courts have become highly adept at discarding the pith and substance of statutory provisions in favour of Convention-compatible ones – or at any rate recycling the former in order to fashion shiny new rights-compliant statutory purposes. Famous examples are R v Director of Public Prosecutions, Ex p Kebilene  2 AC 326 , R (L) v Commissioner of Police of the Metropolis  1 AC 410 and Ghaidan v Godin-Mendoza  UKHL 30.
This is why the mechanism for declaring such provisions incompatible has been invoked so rarely; the process is cumbersome and controversial compared with the “quick-fix” judicial solution of simply prodding the offending provision into shape in court.
Does this matter?
If this means that there is a quiet, cheap way of massaging our laws into conformity with the Convention, why fuss?
The problem is that old potato, parliamentary sovereignty. Section 3 of the Human Rights Act does not authorise the courts to substitute themselves as lawmakers by amending non-compliant legislation. Sections 3(2)(b) and 4(6)(a) carefully preserve the principle of parliamentary sovereignty by providing that incompatible primary legislation shall remain fully effective unless and until repealed or modified. So if the courts find that the statutory wording betrays a purpose that is incompatible with the Convention they must say so, and give Parliament the chance to amend it, either by enacting by primary legislation or under the “fast track” remedial procedure laid down in section 10 of the Human Rights Act.
The obligation to interpret a statutory provision as far “as possible” in accordance with Convention rights is not limited to the courts; it applies to all public authorities. This means that the public authority, to avoid acting unlawfully under Section 6 of the HRA, is obliged to decide first whether the Act of Parliament “can be read or given effect in a way which is compatible rather than incompatible with the Convention rights.”
Given that most public authorities are not experts in international human rights jurisprudence, it is perhaps natural to assume that they are not acting unlawfully if they read the provision in its natural meaning and move accordingly. Not so, says the Supreme Court. A provision which appears to confer a discretion, with the intention that used to promote the policy and objects of the Act, can only be validly exercised in a manner that is compatible with the Convention.
Mr Padfield and the Milk Marketing Board
A central bulwark against unrestrained government power – that no law grants unlimited discretion and the courts will police those limits – seems to have been forgotten here. At least not forgotten, because the minority voices in the Supreme Court were very concerned about it. Back in the sixties the House of Lords ruled that the Agriculture Minister could not rely on the permissive words of the relevant Act to ignore complaints by dairy farmers against the Milk Marketing Board. He was not entitled, in other words, to use his discretion to thwart the policy of the Act, which was to provide the terms of reference for the submission of complaints to a committee of investigation.
This famous judicial rejection of unfettered discretion was all about keeping government ministers within the bounds of their legislative mandate. And determining this mandate, it was necessary, in the words of Lord Upjohn, to look
at the Act and its scope and object in conferring a discretion upon the Minister
With respect, in this case the majority has focussed almost entirely on the word “may” in the PACE provision, disregarding that very “scope and object” in order to find what they wanted to find, in other words that there was some implicit intention behind the scheme to created only a limited DNA basis. But it is difficult to understand why this should be the case, given the legislative history of the provision. As Lord Rodger said
The truth is that Parliament wanted to eliminate the danger, which existed under the pre-existing legislation, that valuable evidence would be lost and potential prosecutions of the guilty based on the latest science would be jeopardised if material had to be removed from the database. Providing for the material to be retained on the database indefinitely was therefore the fundamental feature of the amending legislation which inserted section 64(1A) into PACE.
Anything other than the most contrived reading of the provision describes a power which, save in exceptional circumstances, must be exercised so as to retain the data indefinitely in all cases. Section 64(1A) could not, therefore, be read or given effect so as to permit the power to be exercised proportionately in the way described in by the Strasbourg Court in Marper v UK. As Lord Brown observes, it is hard to see, in the face of such a strong statutory direction, how it is appropriate “to place upon section 64(1A) a construction which denies the police the ability to exercise their data retention power compatibly”
The tendency of the courts to negate the defining feature of legislation in their anxiety to read down provisions in conformity with the Convention is adding fuels to the flame of the Strasbourg controversy. The truth of the matter is that most Convention-non-compliant provisions are just that: public authorities acting under them are accordingly protected by section 6(2)(b) HRA; if a challenge arises, the legislation will be incompatible, and a declaration of incompatibility should be made, and the public authority will be immune from liability. It was surely not the intention of the HRA itself that virtually every operative provision in every law would be interpreted to within an inch of its logical meaning in order to be rendered compatible with the ECHR:
The Court must not cross the boundary from interpretation into legislation. All these familiar concepts and phrases are to be found in the well-known cases on section 3 but their importance has hitherto not perhaps been fully recognised in the context also of section 6(2)(b). 
If the courts feel it is their job under the Human Rights Act to bend the language of Acts of Parliament rather than carefully scrutinising the legislative intention at the time of enactment, there can be no certainty in any law – since it may be that at the time of drafting, a particular provision may be in accordance with Convention rights as they then stand. Years later, with the UK legislation still in force, the Strasbourg Court takes a different view of this or that right and its fit with national legislation – and suddenly it becomes incompatible. What happens then, apparently, is that an entirely new interpretation of the offending provision has to be spatchcocked on to it. The result of this approach by the UK courts has been said by a leading critic to lead to the unnecessary importation of
a raft of new human rights – invented in Strasbourg – thereby circumventing the proper role of our democratically elected Parliament in making new law (Dominic Raab, The Assault on Liberty, Fourth Estate 2009)
It is easy to forget that it is not the court’s primary task to enforce the Convention. Their job is to enforce the law as made by parliament, and therefore it is Parliamentary intention that they should be looking to, not whatever may happen to strike them as a good “fit” with the latest Strasbourg opinion on the point. This is to state a truism and indeed none of the judges in this or any other analogous case pretend to be doing anything other than proceeding from premises that are explicit or clearly implicit in the legislation itself.
It’s just a matter of whose version is the more intelligible, in the end.
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You repeat a myth about the “public outcry” that led to the legislation that is misleading. The R.v. B case was indeed used (and is still being used) by Jack Staw to justify retention of DNA profiles after acquittal, but although the European Court did hear about the case they were better informed about its lack of relevance. If you read your own link to the R.v.B. case (http://www.bailii.org/uk/cases/UKHL/2000/71.html ) carefully, you will see that the rape occurred on 17th March 1997, and the burglary was not committed until afterwards. Rather than changing legislation to allow the retention of aquitted people’s DNA, the remedy to this situation is to analyse the semen from the rape as rapidly as possibly so that anyone who is subsequently tested may reveal a match. In fact, this is now done and thus B.’s DNA profile would not need to be retained in order to solve the case.
The fact is that the New Labour government had decided long before R.v. B that they wished to build a DNA database of the entire UK population: most of this DNA would be collected via the NHS and the genetic data stored in electronic medical records, but the gaps would be filled by expanding collection by the police. R.v. B. was then used to manufacture a public outcry that is not supported by the facts of the case (as was the Sally Ann Bowman case and other cases later on).
An interesting question not discussed in your article is therefore the relationship between the Executive and Parliament. Perhaps parliament’s intention is hard to read because they were never fully involved in the decision in the first place.
What concerns us is that legislation is being written specifically to provide schemes that are loaded in favour of those writing them – this of course does not lead to justice.
There are many examples of MPs voting to exclude themselves from legislation; by way of example, the heavily criticised Bill to exempt them from the Freedom of Information Act and more recently the legislation that makes it illegal to hide certain funds abroad – unless you are an MP of course.
Such schemes undermine the credibility of parliament and makes it impossible for anyone to go to court and take the process seriously. There is no equality under law if the law makers can exempt themselves from those laws which will, inevitably, lead to Lawful Rebellion by the people who feel that their right to such equality and fairness is being removed by a group of representatives who have shown their own self interest over and again.
Perhaps much of the incompatibility results from this duplicitous and self-serving thinking which colours the laws of modern Britain and that only when statutes are enacted for the proper reasons will people trust the resulting laws?
As i said in a comment to your excellent post of 18th May, there is much to be said for the minority view. On the minority view, the Police had to act in the way they did and therefore, applying s6(2) of the HRA 1998, the Police action was lawful. That was entirely sufficient to hold the position until the Protection of Freedoms Bill becomes law.
I do however have something of a problem with people like Dominic Raab MP. He comes across as not being especially in favour of the British people having anything more than a fairly low ceiling of rights. Recent history of the was the House of Commons has acted in relation to civil rights should give rise to considerable concern. The history of the DNA profile retention legislation is one example of this.
There is also concern, as I mentioned previously, about leaving matters of guidance to ACPO / Home Secretary. Their Lordships in the Supreme Court may consider that to be acceptable but it ought to be PARLIAMENT setting out the guidance (obviously with Police input). The Dominic Raabs of the political world cannot go on about an elected Parliament when it suits them and then leave matters to an entirely unelected body of Chief Constables.
I’m wondering if another reason for the preference for reading down rather than declaring incompatibility is because the latter provides no remedy at all for the claimant?
A declaration of incompatibility is the court effectively saying “Yeah, there’s a problem, it’s up to Parliament to fix it. Thanks for bringing it to our attention. but sorry, you’re screwed, even if they get around to it.”.
I would imagine the injustice of this rankles, causing a pretty severe temptation to use their power in a way that affords the claimant the remedy they seek.
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